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In re Kempton

Supreme Court of New Hampshire

June 25, 2015


Argued: May 7, 2015

9th Circuit Court – Nashua Family Division No. 2014-133

William Aivalikles, of Nashua, by brief and orally, for the petitioner.

Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F. Connor on the brief and orally), for the respondent.


The petitioner, Robert Kempton, appeals, and the respondent, Peggy Kempton, cross-appeals, their final divorce decree entered by the Circuit Court (Introcaso, J.). In his appeal, the petitioner argues that the trial court erred by denying his request for a fault-based divorce. He also challenges the trial court's alimony award and property distribution. In her cross-appeal, the respondent likewise challenges the trial court's alimony award and property distribution. In addition, she argues that the trial court violated her constitutional right to due process by denying her request for a continuance and "forc[ing] her to appear at the parties' two[-]day divorce trial by telephone." We affirm.

The pertinent facts are as follows. When the parties divorced, the petitioner was a 56-year-old airline pilot, earning approximately $160, 000 annually, and the respondent was a 57-year-old inmate, incarcerated in a Massachusetts prison after having pleaded guilty to numerous counts of larceny and credit card fraud.

The parties were married in 1986. Their three children are now adults. In 1997, the parties moved from Georgia to Harvard, Massachusetts, where the respondent was hired as an executive by Fruitlands Museum. In 1998, they purchased a home in Hollis because they anticipated moving there. For the next ten years, however, while the respondent and the children lived in a rented home on the museum property in Massachusetts and the children attended Massachusetts schools, the petitioner lived in Hollis and the respondent and the children spent their weekends with him there. In approximately 2003, the parties purchased land in Georgia.

The respondent continued to work at the museum until early 2008, when she left her employment after having embezzled approximately $1.3 million. In June 2009, the respondent was indicted on, among other charges, 14 counts of larceny. In August 2010, she and the parties' adult children were also named as defendants in a civil suit the museum brought for misusing museum credit cards. As a result of the indictments, the respondent was evicted from the museum rental property.

The parties hired an attorney to represent the respondent and their children, initially paying him $40, 000 for his services. In approximately July 2008, the attorney asked for an additional $60, 000. In August 2008, the parties entered into a postnuptial agreement awarding the petitioner the Hollis home, the Georgia real estate, and his retirement accounts in return for paying the attorney a total of $100, 000. The petitioner used some of his retirement money and obtained a home equity loan on the Hollis property to pay the attorney the remaining $60, 000. The petitioner estimates that he has spent approximately $326, 000 as a direct result of the respondent's criminal conduct. The petitioner testified that, as a result of the respondent's criminal conduct, of which he was unaware, he was "wiped out" financially and had to file for bankruptcy.

After the respondent was indicted, but before she was convicted, the petitioner paid $42, 353 of the approximately $150, 000 the respondent owed in credit card debt. As a result of a mistake made by the credit bureaus, the respondent's credit card debt adversely affected the petitioner's credit score. Moreover, the respondent established credit in the petitioner's name and, allegedly, without his consent, electronically signed his name to loan documents.

In June 2010, the respondent pleaded guilty to all of the criminal charges and was sentenced to serve three-to-five years in a Massachusetts state prison. She was also ordered to pay restitution to the museum in the amount of $1, 338, 791. To secure this debt, the museum attached the parties' Hollis home. The Hollis home was also attached by a credit card company as a result of the respondent's unpaid credit card debt. The petitioner testified that the Hollis home "went into foreclosure" in May 2013.

In July 2011, the petitioner filed a petition for divorce based upon irreconcilable differences. In September 2011, the respondent filed a cross-petition alleging certain fault grounds for divorce. In response, the petitioner amended his petition to include, among other fault grounds, the fault ground of a spouse's imprisonment for more than one year. See RSA 458:7, IV (2004).

The final hearing on the parties' divorce petitions was scheduled to take place in October 2013. In August 2013, the respondent moved for a continuance until "after December 17, 2013, " when she was scheduled to be released from prison. Although the respondent had counsel, she asserted that her inability to "be present in person" at the final hearing "would make it impossible for her to represent herself properly." The trial court denied the respondent's motion, stating that if she "wish[ed] to 'appear, '" she should "make appropriate arrangements." The respondent did not ground her motion in a constitutional provision or doctrine.

The respondent moved for reconsideration, asserting that she was "not able to appear or to make arrangements regarding same as the Massachusetts prison system will not allow her to make arrangements to attend a hearing out of state." The respondent contended that unless the trial court granted her request for a continuance, she would "not be able to attend her own divorce hearing" and would be "denied her right to appear before the Court and to understand and hear everything that will proceed." She asserted that this would deny her "a fair and equitable hearing in her divorce matter." Again, the respondent did not refer to a constitutional provision or doctrine.

It was not until the hearing on the motion to reconsider that the respondent used the phrase "due process, " arguing that denying her a continuance deprived her of her "due process" right to "get to see [her] accuser" and to "get to see and hear everything that is going on."

The trial court denied the respondent's motion to reconsider, observing that she had counsel and had appeared telephonically in prior proceedings. The trial court stated that it had "no authority to order the Commonwealth of Massachusetts to produce [the respondent] for trial." The trial court explained that "if the [r]espondent chooses to be present at her hearing, she may, with the assistance of her counsel, make arrangements to appear telephonically to hear the evidence in this matter and testify on her own behalf."

Thereafter, the respondent filed a motion requesting permission from the trial court to file an interlocutory appeal from the court's ruling in which she again argued that the trial court had deprived her of due process by denying her motion for a continuance, although she did not cite a specific constitutional provision. See Sup. Ct. R. 8. She also filed a motion to appear telephonically at the merits hearing, which the trial court granted.

The trial court denied the respondent's motion for permission to file an interlocutory appeal because it disagreed with her assertion that "[she] has a due process right to be physically present at these proceedings, " given that she "is currently incarcerated in the State of Massachusetts[, ] . . . is represented by counsel[, ] . . . has participated in all phases of the[ ] proceedings[, ] and has routinely appeared telephonically." The court explained that to delay the divorce hearing further would not be equitable to the petitioner, who filed his petition in July 2011, more than two years earlier. The court observed that, although the respondent's attorney represented that the respondent would be paroled in mid-December 2013, she had been denied parole in the past, and her maximum release date was not until "well into 2014." The court also noted that it had already granted the respondent's motion to appear telephonically. Accordingly, the final hearing took place, as originally scheduled. The respondent was represented by counsel and participated by telephone.

Following the merits hearing, the trial court granted the parties a divorce on the grounds of irreconcilable differences, after concluding that neither had proved the alleged fault grounds. Upon considering the factors set forth in RSA 458:19 (Supp. 2014), the court ordered the petitioner to pay the respondent $2, 850 in monthly alimony for 96 months or until her remarriage or death, whichever occurs first. The court determined an unequal apportionment of the parties' retirement assets to be equitable, awarding the petitioner 2/3 and the respondent 1/3 of the petitioner's individual retirement account and defined benefit pension plan benefits (accrued between the date of the parties' marriage and the date of the petition for divorce). The court awarded the petitioner the Hollis ...

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